This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP1387

Cir. Ct. No.2011SC2629

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT II

Michael Markworth and Susan Markworth,

Plaintiffs-Respondents,

v.

Kathryn L. McMasters,

Defendant-Appellant.

APPEAL
from an order of the circuit court for Sheboygan County:James J.
Bolgert, Judge.Affirmed.

¶1BROWN, C.J.[1]Kathryn McMasters appeals from the order of
the circuit court dismissing her counterclaim in the eviction action that Michael
and Susan Markworth filed against her. In the eviction proceedings, the
Markworths claimed that McMasters owed them over $10,000 in damages for past
due rent and the costs of restoring the home to habitable condition after her
eviction.McMasters, in turn, claimed
that the Markworths owed her over $35,000 in damages for her personal property
that the Markworths either threw out or withheld, allegedly in violation of Wis. Stat. §§ 799.45 and
704.05(5)(bf).[2]McMasters
also continues to press her arguments that she did not receive proper notice of
her eviction and that she had an enforceable contract to purchase the home.

¶2We find no basis to reverse the circuit court’s
determinations that McMasters’ eviction was proper, that she had no enforceable
contract to purchase the home, and that the parties’ respective damages claims
cancelled each other out. We affirm.

Facts

¶3In 2008, the Markworths rented a property on Oakland Avenue
in Sheboygan to McMasters, under a written lease that stated McMasters could
make “an offer to purchase the home with a $500.00 down payment by March
31.”

¶4In November 2011, the Markworths sued to evict McMasters on
the basis that McMasters “was served with a Notice Terminating Tenancy on
September 12, 2011,” but failed to vacate “on or before October 28, 2011,” as
required. The Markworths sought past-due
rent, double damages for unpaid rent per Wis.
Stat. § 704.27, and other damages.

¶5McMasters was served with a summons and complaint in the
eviction action when the notice was posted conspicuously at the Oakland property,
her last known mailing address.She appeared
in person at the initial hearing on November 28, 2011. The Markworths’ attorney
filed a “letter of appearance” in the action but did not attend the
hearing.McMasters filed her answer and
counterclaim with the court, alleging that she didn’t “owe anything,” and
complaining that she was being wrongfully evicted because she had a “verbal agreement
to purchase the home.”She also made a counterclaim for $4800, based
upon a “down payment” and portions of the rent that were, she alleged, to be
going toward the purchase of the home.

¶6The case was set for a trial on December 5, 2011.In her appellate brief, McMasters asserts
that the December 5, 2011 hearing date must have been set “after [she] left”
the November 28 hearing, and claims that she never received the mailed notice. The
minute sheet, however, indicates that a notice of the December hearing was issued
on November 28, 2011, and the answer and counterclaim McMasters filed that same
day lists the Oakland property as her address.

¶7McMasters testified that she moved out of the Oakland property
at “the end of November” and into a new apartment on December 1.She further testified that in early December,
before the locks were changed, she returned to the Oakland property to retrieve
some of her belongings.

¶8The next hearing in the eviction action took place on
December 5, as scheduled.McMasters
failed to appear, so a default judgment of eviction was granted in favor of the
Markworths.At the hearing, the
Markworths asserted that McMasters had left her personal property and her cat
at the Oakland property, and the court commissioner held the case open for
determination of damages.

¶9McMasters appeared at the January pretrial conference and
requested that her counterclaim be reopened.She asserted that her failure to appear in December “was not
intentional” but happened because she “had not put in a change of address yet,”
and asserted that the Markworths “sent the [notice of hearing] back” to the
court so she would not receive it. The
Markworths opposed reopening the default judgment on the grounds that McMasters
was properly notified of the December 5 hearing by mail to her last known
address.

¶10A status conference in the case was set for March 6, 2012.In advance of that hearing, McMasters sent
correspondence to the court about her counterclaim, asserting that the
Markworths had not permitted her to get her personal property.The Markworths responded by repeating their
objection to reopening McMasters’ counterclaim, because, they argued, the
default judgment was proper.

¶11The
minutes of the March pretrial conference hearing indicate that both parties
wished to make claims for damages, and that the Markworths had discarded all of
McMasters’ property.A trial to the
court was set for May 4, 2012, with the court putting the parties on notice
that it would first take up the issue of the alleged rent-to-own agreement.

¶12At the outset of the May 4 trial, the court heard and granted
the Markworths’ motion for summary judgment against McMasters’ rent-to-own
claim, because McMasters conceded that the agreement was a verbal one, and
Wisconsin law requires such agreements to be in writing.See Wis. Stat. § 706.02.

¶13The court proceeded to hear evidence and argument from both sides
concerning their competing damages claims.The Markworths presented their case first, alleging that McMasters left
the property in poor condition, with furnishings and clothing “piled high to
the ceiling,” cat urine and feces on walls and furniture, a “punched out” wall,
broken windows, and “things that were trashed” and had to be disposed of.Testimony also indicated that McMasters
received notice that her property would be stored at her expense and then
disposed of after thirty days, as permitted by law.Some property, though, the Markworths argued,
“wasn’t savable” and so was disposed of during the thirty-day period.With respect to McMasters’ assertions that
she was not allowed to get her belongings, the Markworths claimed that McMasters
once showed up with a moving van but failed to take her items from the front
porch, on another occasion failed to show up as planned, and another occasion requested
a time that did not work for the Markworths.In all,the testimony and
documents submitted by the Markworths sought to document more than $10,000[3]
in costs incurred for past-due rent, damages, and cleaning and repairing the home.

¶14In her testimony, McMasters insisted that the Markworths
disposed of property that was salvageable without giving her the chance to
retrieve it, and that “whether [they] thought the items were of no value … it
wasn’t [their] call to make.” She also
testified that she tried to make arrangements to retrieve her property but “was
not able to” get an agreement for a mutually convenient time to do so.Regarding the day she came with a moving van,
McMasters contradicted the Markworths’ account, testifying that instead she was
“chased … off the porch” and told to leave the property.She submitted photos documenting her visit
that day.

¶15McMasters also contradicted the Markworths’ characterization of
the state of the property when she left it, asserting that they, not she,
stacked her belongings and created much of the mess.She also protested that she
had been checking in on and cleaning up after the cat.She admitted, however, that she did not pay full
rent in September, October, or November. Finally, she asserted that the personal
property she had left in the home, which the Markworths disposed of, was worth
about $35,000.She alsotestified that she made a $500 security deposit at the outset of
the lease, as well as paid an additional $500 when she made an offer to
purchase per the alleged oral agreement.She also presented additional witnesses who testified concerning her
attempts to retrieve her property, the nature of the property, and the
Markworths’ disposal of it.

¶16After the Markworths had a chance to rebut some of McMasters’
assertions, the parties made their arguments to the court. Immediately following those
arguments, the court gave its ruling, stating its view that the parties’
respective damages claims cancelled each other out.Specifically, the court explained
its finding that the Markworths had proven damages amounting to $4418.48 in
total, against which the court would offset the security deposits of $1000 and
the money the Markworths made by selling some of McMasters’ property, just over
$700.So, the court held, there remained
a balance due the Markworths “of $2700.”

¶17With respect to McMasters’ claims, the court found that the
Markworths had violated the law when they disposed of property belonging to
McMasters without permitting McMasters “to decide whether it [was] junk or not.”The court was not convinced that the property
was worth the $35,000 that McMasters claimed, but instead concluded that the
“reasonable value of the property that was junked before the 30-day period was
$2700.”

¶18After making those findings, the court held that both claims
were dismissed and that neither party was entitled to damages from the other.McMasters filed this appeal.

Analysis

¶19In an eviction action, the issues are “(1) whether the relation
of landlord and tenant exists between the plaintiff and defendant; (2) whether
such tenant holds over after the term of his lease has expired ... and (3)
whether the proper notice has been given before the action is commenced.”Clark Oil & Ref. Corp. v. Leistikow,
69 Wis. 2d 226, 235, 230 N.W.2d 736 (1975) (citation omitted). On appeal, we review the court’s legal
decisions de novo but must uphold its factual determinations unless they are
clearly erroneous.Tufail v. Midwest Hospitality, LLC,
2013 WI 62, ¶¶22-23, ___ Wis. 2d ___, ___ N.W.2d ___.

¶20On appeal, McMasters makes three arguments: (1) that she had an enforceable rent-to-own
contract to purchase the property, (2) that she did not receive notice of
eviction, and (3) that her property was disposed of in violation of state
statutes.We affirm the circuit court’s
decision as to each issue.

¶21With her first argument, McMasters attempts to establish that
the relationship between her and the Markworths was one of buyer and sellers
instead of tenant and landlords.But as
the circuit court correctly held, under Wis.
Stat. § 706.02, a conveyance of real property is invalid unless it
is in writing.There is no writing
memorializing a conveyance of the property to McMasters by the Markworths, and
to the contrary, the writing in evidence establishes that the Markworths were
the landlords and McMasters the tenant.Hence,
McMasters’ first argument fails.

¶22McMasters’ second argument is that she did not receive the
statutorily required notice of eviction.[4]The record reflects, however, that the
summons and complaint in the eviction action were properly served upon
McMasters.Moreover, in her arguments
below, McMasters stated, “It is not my desire to live in the [property],
however I do wish for my counter claim [for the lost belongings] to be
heard.”She also testified that she
moved out of the property at the end of November and into a new residence on
December 1.Having voluntarily left the
residence, and having disclaimed any interest in staying in the property, McMasters
may not now challenge the eviction action itself on grounds that there was no
writ of restitution.

¶23To the extent McMasters means to argue that she did not receive
notice of the December 5, 2011 hearing and that the default judgment of eviction
issued on that date should be reopened, the issue is a red herring.As discussed above, the record reflects that
the notice was mailed to her at her last known address.Moreover, in any event, the circuit court
implicitly did reopen the default judgment by hearing and ruling on the
competing damages claims in the eviction action.In reality, McMasters’ appeal concerns the
way the court resolved the competing damages claims in the eviction after the
trial in May 2012, not the default judgment in December.

¶24So, we turn to McMasters’ last argument, and the actual reason
for her appeal: the disposal of her
property.To begin with, McMasters claims
that the manner in which the Markworths handled her abandoned property violated
Wis. Stat. §§ 799.44 and 799.45.Those statutes set forth the procedures for
the issuance and execution of a writ of restitution, which is required when a
tenant holds over and refuses to vacate the premises.See § 799.44.McMasters, by her own admission, “moved out
[at] the end of November.”So the
Markworths had no need to resort to having the sheriff forcibly remove her or
her belongings from the property.

¶25McMasters’ real beef is with the way the Markworths handled the
personal belongings that she left behind when she moved out.Unfortunately, the facts related to the
events that happened after McMasters moved out, and the state in which she left
the property when she moved, were in stark controversy.On one hand, the Markworths argued that
McMasters left the property in a terrible state and then failed to make
reasonable efforts to retrieve her abandoned belongings, which they
characterized as junk; on the other hand, McMasters contended that the
Markworths maliciously prevented her from retrieving her belongings and threw
away valuable property worth $35,000.

¶26On appeal, we may not set aside the circuit court’s
determinations concerning the facts unless they are clearly erroneous. Neff
v. Pierzina, 2001 WI 95, ¶39, 245 Wis. 2d 285, 629 N.W.2d 177. There was no clear error here. To the contrary, the circuit court thoroughly considered
each parties’ evidence and arguments as to each material dispute of facts.The court then resolved those controversies,
ultimately determining that each party was entitled to only part of what it
claimed.The court explained its
determination carefully, and we can find no clear error of fact in any of its
determinations.Thus, “we are bound to
accept those findings.” Tufail,
2013 WI 62, ¶42.

By
the Court.—Order affirmed.

This opinion will not be
published.SeeWis. Stat. Rule
809.23(1)(b)4

[1] This
appeal is decided by one judge pursuant to Wis.
Stat. § 752.31(2)(a)
(2011-12).All references to the
Wisconsin Statutes are to the 2011-12 version unless otherwise noted.

[2] Note
that subsequent to McMasters’ eviction, Wis.
Stat. § 704.05 was amended such that the notice and opportunity to
retrieve personal property is no longer required.Instead, the landlord may, subject to certain
limited exceptions, “dispose of … abandoned personal property in any manner
that the landlord, in its sole discretion, determines is appropriate.”§ 704.05(5)(a)1.

[3] Testimony
revealed that a portion of those claimed damages were for labor that was not
actually paid, however.

[4] Actually,
while she labels this issue “eviction notice,” in her brief the substance of
her argument is based upon Wis. Stat. § 799.44,
which relates not to notice of an eviction action but notice that the landlord
has been granted a judgment of eviction and writ of restitution.We respond to this argument as part of our
resolution of the other arguments McMasters makes concerning the Markworths’
actions after she vacated the property.